Forking the OGL

[PapersAndPaychecks]

Short answer is talk to a lawyer before you assume that game rules aren't copyrightable (at least at the scale of a whole RPG).

I did.

 

[Oldtimer]

But those of you thinking that WotC's material is somehow "open" because it's also found in the SRD are simply wrong. WotC is granting third parties the right to create derived works using the SRD through the OGL. Because WotC's right to create derived works is not based on the OGL, but rather through its status as the copyright holder of the original, NOTHING WotC publishes is Open unless they choose to explicitly make it so through designation as Open Game Content.

Noone here is, to my knowledge, thinking that WotC's material would magically be Open Content without reason. The debate was something else entirely.

We were talking about the forking of the OGL - whether the new OGL coming for 4e could legally considered to be a new version of OGL 1.0a (and therefore invoking section 9 of that license). WotC themselves have talked about an SRD and an OGL (and, cursiously Open Source) for 4e. It's the interconnectedness of all these documents we were discussing.

 

[Bardsandsages]

From the U.S. Copyright Office Site:

http://www.copyright.gov/circs/circ1.html#wnp

What Is Not Protected by Copyright?
Several categories of material are generally not eligible for federal copyright protection. These include among others:

Works that have not been fixed in a tangible form of expression (for example, choreographic works that have not been notated or recorded, or improvisational speeches or performances that have not been written or recorded)

Titles, names, short phrases, and slogans; familiar symbols or designs; mere variations of typographic ornamentation, lettering, or coloring; mere listings of ingredients or contents

Ideas, procedures, methods, systems, processes, concepts, principles, discoveries, or devices, as distinguished from a description, explanation, or illustration

Works consisting entirely of information that is common property and containing no original authorship (for example: standard calendars, height and weight charts, tape measures and rulers, and lists or tables taken from public documents or other common sources)

Furthermore:

http://www.copyright.gov/fls/fl108.html

Copyright protects only the particular manner of an author’s expression in literary, artistic, or musical form. Copyright protection does not extend to any idea, system, method, device, or trademark material involved in the development, merchandising, or playing of a game. Once a game has been made public, nothing in the copyright law prevents others from developing another game based on similar principles.

While the law is often convoluted, it doesn't get much clearer than that.

The rules themselves are not protected by copyright. The PRESENTATION of the rules is.

 

[Kevin Brennan]

While the law is often convoluted, it doesn't get much clearer than that.

The rules themselves are not protected by copyright. The PRESENTATION of the rules is.

All I'm telling you is that in my conversations with an IP lawyer, I was informed that the concept of derived works in actual case law is not simple or straightforward. In particular, what presentation means is a very slippery concept under the law and there are not many precedents in case law--and none that specifically address the use of licenses like the OGL, which may alter the situation as well, particularly where "product identity" is concerned. I really don't care whether you believe my law firm or not, it's not my problem.

Obviously, I did not ask my lawyer to express an opinion on the legality of OSRIC and I'm not implying that it's in violation of the OGL. I'm just letting you know that it is the considered opinion of legal professionals in this field who have worked for me that this is a murky area.

 

[Kevin Brennan]

We were talking about the forking of the OGL - whether the new OGL coming for 4e could legally considered to be a new version of OGL 1.0a (and therefore invoking section 9 of that license). WotC themselves have talked about an SRD and an OGL (and, cursiously Open Source) for 4e. It's the interconnectedness of all these documents we were discussing.

Until we see the license, who knows? If it's legally a "new version" of the existing OGL then section 9 should come into play. WotC have not been clear about this but i would assume that if they want it to legally be a distinct license, Hasbro's lawyers will find a way to make that happen.

 

[Delta]

We were talking about the forking of the OGL - whether the new OGL coming for 4e could legally considered to be a new version of OGL 1.0a (and therefore invoking section 9 of that license).

At this point I'd guess that WOTC sees Section 9 as forward-operating only (i.e., stuff declared for v1.0 can appear under v2.0 but not the reverse). That's what their online FAQ literally states. If it came to legal fisticuffs there'd be argument over what the word "originally" means in OGL v1.0 Section 9 (which seems somewhat ambiguously worded to me).

 

[Kevin Brennan]

At this point I'd guess that WOTC sees Section 9 as forward-operating only (i.e., stuff declared for v1.0 can appear under v2.0 but not the reverse). That's what their online FAQ literally states. If it came to legal fisticuffs there'd be argument over what the word "originally" means in OGL v1.0 Section 9 (which seems somewhat ambiguously worded to me).

IANAL but my understanding is that it operates in both directions, and I remember discussion when the OGL was drafted stating that it was intended to do so. I note that it doesn't use the word "subsequent" in that section, which would probably be required to make it forwards only.

 

[Delta]

IANAL but my understanding is that it operates in both directions, and I remember discussion when the OGL was drafted stating that it was intended to do so. I note that it doesn't use the word "subsequent" in that section, which would probably be required to make it forwards only.

Here's WOTC's FAQ:
http://www.wizards.com/default.asp?x=d20/oglfaq/20040123f

Q: Can't Wizards of the Coast change the License in a way that I wouldn't like?

A: Yes, it could. However, the License already defines what will happen to content that has been previously distributed using an earlier version, in Section 9. As a result, even if Wizards made a change you disagreed with, you could continue to use an earlier, acceptable version at your option. In other words, there's no reason for Wizards to ever make a change that the community of people using the Open Gaming License would object to, because the community would just ignore the change anyway.

There's an argument to be made, but potentially it would be an argument with WOTC lawyers.

 

[HalWhitewyrm]

So, how long before someone reverse-engineers the 4e improvements using the SRD, effectively creating 3.75?

 

[BASHMAN]

It looks to me that you could legally create 4e-compatible material under the original (3e) OGL, without using the 4e 'OGL'; game mechanics are not copyright-protected, nor will they be 'product identity' under the 3e OGL, so neither IP nor contract law will stop this.

But you would need to avoid infringing 4e-specific trademarks in your work, which might create some limitations.

I bet someone could even get away with publishing modules under the 3.x OGL using the title, "4th Edition Dungeons" and be totally safe. Nobody said it was 4th Edition of D&D... As long as the product doesn't say "compatable with 4th Edition D&D" they are not bound by the 4e OGL (but would be under the much freer, open 3.x ogl. Remember the 3.x OGL was used to publish OSRIC material-- which "just happened to be" compatable with 1st ed AD&D... I have no doubt someone will try this with 4th Ed...